Endorsing Lorrin Freeman in 2018, the Raleigh News & Observer praised the district attorney for “[doing] more than prosecute. … She supports programs that divert the mentally ill out of the criminal justice system and programs that help treat addictions that can lead to crime.”
That’s Freeman’s brand: a tough prosecutor, but not just that. She points to her office’s second-chance programs as evidence that she’s changing the system from within.
But critics argue that if you scratch the surface, they’re not the success stories they’re made out to be.
The Assembly took a closer look at four of them.
90-96
Freeman provided The Assembly with participation data for five of her office’s 10 diversion programs, which defer and ultimately dismiss low-level charges once offenders meet the program’s requirements.
Of those, the most utilized is called 90-96, referring to the state statute that authorized it. Since 2016, Wake prosecutors have deferred charges for more than 8,500 first-time misdemeanor drug and alcohol offenders. More than 80% have completed the program, which entails attending classes, passing drug tests, and paying about $400 in fees and court costs. (Freeman says SouthLight Healthcare, which administers the program, waives its fees for the indigent.)
To Freeman’s supporters, the benefits are obvious: People who need help get treatment while avoiding a criminal record.
But critics say many 90-96 participants shouldn’t have been charged in the first place. The drug deferrals—which outnumber alcohol deferrals three to one—mostly stem from the possession of small amounts of marijuana and pills such as Xanax and Ambien, defense lawyers say. (The alcohol deferrals are often from underage drinking, but never DWIs.)
In neighboring Durham County, Satana Deberry doesn’t prosecute misdemeanor marijuana possession. Freeman’s opponent, Damon Chetson, says that if elected, he won’t either. Mecklenburg County’s Spencer Merriweather no longer prosecutes most drug possession cases.
But Freeman told a forum hosted by Emancipate NC that charging cannabis possession gets offenders into treatment and helps them “avoid a life of substance abuse.”
Mental Health Diversion
There’s little question Freeman takes mental health seriously.
Growing up, she watched her sister battle severe mental illness, an experience she carried into public life. Soon after becoming district attorney, she co-founded a committee of government, law enforcement, and health care power players to shape Wake County’s behavioral health policies. It spurred the development of a specialized urgent health clinic, mobile crisis teams, permanent housing for the homeless, crisis intervention training for law enforcement, and an in-the-works database officials hope will enable service providers to proactively connect with people in need.
Yet her office’s mental health diversion program currently enrolls just 23 people.
“Certainly, we would like to be able to have more people go through those programs, and as we see cases that are appropriate we will defer them,” Freeman explained during a Feb. 15 candidate forum. “We also have a responsibility to victims and to keeping our community safe.”
Participants must be first-time offenders charged with nonviolent, nonsexual crimes—in other words, crimes that don’t suggest a safety threat.
“This program was designed as a way to address offenses that might be directly related or caused by an underlying [severe and persistent mental illness] (for example, when someone is in crisis/active psychosis, etc. and commits an offense),” Freeman told The Assembly in an email.
The program’s eligibility criteria, however, say nothing about being “in crisis” or experiencing “active psychosis,” nor do they require an illness to be “directly related” to the crime. They also allow prosecutors to divert some minor felonies, but they no longer do, said Jackie Willingham, a former assistant public defender who helped launch the program in 2016.
Several defense attorneys told The Assembly that prosecutors tasked with deciding which cases to divert know little about the program or mental health, so they default to denying deferrals. The program “has evolved to, ‘if they’re bipolar, if they’re schizophrenic,’” Willingham said.
But that wasn’t the intent, she said. And the program doesn’t come close to meeting the need.
Expunction
Freeman’s first expunction clinic in 2017 helped about 300 people remove charges from their record. Since then, she says, the annual clinics have allowed another 200 people to get their charges expunged.
Meanwhile, in 2020, Durham County’s district attorney, Satana Deberry, took advantage of a provision in the new Second Chance Act that allows prosecutors to expunge most adult convictions of 16- and 17-year-olds handed down before Dec. 1, 2019, when the Raise the Age Act moved those cases to juvenile court. She quickly wiped out more than 3,100 charges belonging to about 400 people.
So did a bipartisan group of district attorneys from across the state, together eliminating more than 70,000 charges, according to the North Carolina Justice Center. If every district attorney initiated these mass expunctions, more those 400,000 convictions would vanish.
Freeman obtained a list of thousands of people who are eligible for expunction. So far, though, she hasn’t done anything with it.
She doesn’t have enough resources, she says. State law requires her office to make its “best efforts” to contact victims before their assailant’s expunction hearing so they can be heard before the court. Some convictions date back decades, however, and finding current addresses isn’t easy.
“I’m not sure why [lawmakers] included that,” Freeman said. But she acknowledges that about half of the eligible convictions are for crimes in which there’s no victim to track down.
Freeman says she wants to do mass expunctions as resources become available. But her first priority is the driver’s license restoration program.
Driver’s License Restoration
In 2019, the city of Durham started a program that has eliminated about 35,000 people’s traffic-related court debts and restored their suspended driver’s licenses.
In May, Freeman began down that path. She obtained a list of 17,000 people—of the nearly 27,000 in Wake County whose licenses were suspended over court debts—who met her specifications: their debt was older than five years and wasn’t related to a DWI or another safety-related issue.
Since then, she’s eliminated about 100 people’s debts.
Congested court dockets have slowed things down, Freeman says. But so has her requirement that her investigator review the driving record of every name on that list “to identify individuals who may pose a public safety risk if they are licensed,” she wrote in an email.
“It would be our intent to continue to proceed through all of these as time permits,” she added.
Freeman points out that her office works with Campbell University’s law school to help forgive debts on an individual basis. She doesn’t track how many individuals had their licenses restored this way, “but there are a lot.”
According to data provided by Emily Mistr, who runs Campbell’s driver’s license restoration program, since March 2019, there have been 200.
Freeman says that in some ways, the Campbell program is more effective than mass debt relief. If she cleared traffic debts of beneficiaries who didn’t know they’d been helped, they also wouldn’t know they had to go to the DMV and to get their license restored.
“We might be helping a smaller number of people, but they’re actually benefiting, and they know they’re benefiting from the relief,” Freeman said.
Jeffrey Billman reports on politics and the law for The Assembly. He is the former editor-in-chief of INDY Week in Durham. Email him at jeffrey@theassemblync.com.
This is a sidebar of The Assembly’s larger exploration of the Wake County District Attorney’s Office. That deep dive is linked here.